Opinion
16-P-1161
05-12-2017
Emery NUNES v. Kinga CETERA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal follows after an adverse determination by a medical malpractice tribunal and the denial of the plaintiff's motion to reduce bond. For the reasons that follow, we affirm.
Background. The plaintiff, Emery Nunes, an inmate housed at Massachusetts Correctional Institution at Norfolk, brought a medical malpractice claim against Kinga Cetera, a physician who was previously employed at UMass Correctional Health and treated Nunes in 2012 for a urinary tract infection. Nunes claims that Cetera delayed in diagnosing the infection which, in turn, resulted in endocarditis and "vegetation" on his aortic wall and required an aortic valve replacement and mitral valve repair several months later. The claim was referred to the tribunal, to which Nunes submitted an offer of proof without any supporting expert medical opinion. The tribunal found that the evidence presented, even if believed, was insufficient to raise a legitimate question of liability appropriate for judicial inquiry, and ordered Nunes to post a bond in the amount of $6,000, subject to dismissal of the action if the bond was not posted within thirty days. Nunes sought reduction of the bond to one dollar on the ground of indigency. A judge of the Superior Court denied Nunes's motion, but later withdrew that order and referred the matter to the tribunal judge for appropriate consideration under G. L. c. 261, §§ 27A - 27D. The tribunal judge, noting that Nunes's offer of proof remained unsubstantiated, declined to waive or to reduce the bond. Nunes did not post the bond and, upon Cetera's motion, the tribunal judge dismissed the action. On appeal, Nunes contends that the tribunal judge abused her discretion by not reducing the bond, that his offer of proof was sufficient, and that the tribunal ignored his witnesses. We affirm.
Discussion. In all cases alleging medical malpractice, a plaintiff must present an offer of proof to the tribunal which determines whether the evidence presented is sufficient to raise a legitimate claim of liability appropriate for judicial inquiry. See G. L. c. 231, § 60B. In making this determination, the tribunal's function is analogous to a judge's ruling on a motion for directed verdict. See Goudreault v. Nine, 87 Mass. App. Ct. 304, 308 (2015). Accordingly, a sufficient offer of proof almost always requires expert opinion. See Anderson v. Attar, 65 Mass. App. Ct. 910, 911 (2006).
The tribunal did not err by finding Nunes's offer of proof lacking where he submitted only his complaint and medical records. That an allegedly delayed diagnosis of a urinary tract infection can lead to aortic valve replacement and mitral valve repair is beyond the ken of an ordinary juror, and thus required expert opinion. Contrast Lipman v. Lustig, 346 Mass. 182, 184 (1963) (jurors did not need expert testimony to determine whether dentist's dropping tool into patient's throat was negligence).
Moreover, there was no error in denying Nunes's motion to reduce the bond. In considering such a motion, the tribunal judge was required to determine whether Nunes was indigent and then assess the strength of his offer of proof to the tribunal. See Perez v. Bay State Ambulance & Hosp. Rental Serv., Inc., 413 Mass. 670, 678 (1992). The tribunal judge did not err by refusing to reduce the bond, even though she also found Nunes to be indigent, because the offer of proof, construed most favorably to Nunes, does not support a viable claim. Ibid.
To the extent that we have not addressed other points made by Nunes, they "have not been overlooked." Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954). We have considered them and found them to be without merit.
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Judgment affirmed.